The Hastings Dilemma

August 2 2010, 11:00am

A Conversation about Diversity with Carlos E. Cortés Professor Emeritus of History – University of California, Riverside carlos.cortes@ucr.edu Let’s talk about Limits.

On June 28, 2010, in the case of Christian Legal Society v. Martinez, the U. S. Supreme Court voted 5-to-4 to uphold the right of the University of California’s Hastings College of the Law to deny official recognition to a student organization, the Christian Legal Society (CLS). Hastings’ action had barred CLS from access to state funding and use of school facilities. Albert Einstein recommended, “Make everything as simple as possible, but not simpler.”  So here’s the issue in a simple non-lawyer’s nut-shell. Hastings has a nondiscrimination code for student organizations.  The national Christian Legal Society requires members to sign an agreement to refrain from “a sexually immoral lifestyle,” which includes having sex outside of heterosexual marriage.  The upshot is that this requirement excludes gays and lesbians, ergo discrimination.  When Hastings refused to recognize the local CLS chapter, the organization took Hastings to court. The Supreme Court could have ruled in favor of the CLS’ right of free association.  Or it could have ruled in favor of Hastings’ written nondiscrimination policy.  It did neither.  Rather it punted, which is why the ruling’s fall-out may go on and on and on. Instead the Court ruled in favor of Hastings on much narrower grounds –- that it had an “all-comers” policy, meaning that recognized student organizations had to accept all students who wanted to join, which CLS was not willing to do.  To the court majority, this policy was OK because it was “viewpoint neutral.” Principles in Collision

I’m not a lawyer, so I won’t comment on the legal issues involved.  Obviously they are complex enough to provoke deep division within the court. But as a diversity specialist, I find this case to be extremely significant precisely because it pits hallowed diversity principles against each other.  And it exposes a slippery-slope topic studiously avoided in many diversity discussions –- the issue of when, how, and why to set Limits . . . to almost any diversity principle. I’ve been addressing the Limits Dilemma for two decades in my diversity talks and workshops.  Yet it’s also something that I find many diversity advocates unwilling to face head on. Things were simple back in the good old days of the Civil Rights Movement.  Our moral compass was clear.  Eliminate racism.  Down with sexism.  End segregation.  Simple enough. But over the decades, diversity stuff has become more complicated, particularly when diversity principles collide.  The Greek philosopher, Epictetus, argued that you must go beyond developing a moral compass.  You also need to learn how to apply that compass to the map of the world, with its messy complexities. Consider some of the general principles espoused by diversity proponents like me, principles that collided in the Hastings-CLS situation:

support for full inclusion. opposition to discrimination. the richness of multiculturalism, including the right –- even the benefit –- of people creating and maintaining affinity groups based on common identities. respect for groups with varied sets of beliefs and values, sometimes referred to as cultures. the importance of multi-perspectivism, such as learning to understand (not necessarily accept or tolerate) the perspectives of others, including group perspectives with which you may deeply disagree. the need to be responsive to group differences, not just individual ones, rather than championing one-size-fits-all “solutions.”

The Limits Dilemma

Because these principles clashed in the Hastings-CLS case, whatever the Court did, its decision would have inevitably set Limits by elevating some diversity principles over others in this specific instance.  Most post-decision reactions, however, have tended to gloss over this dilemma. Backers of the decision tend to laud the Court’s support for Hastings’ “neutral” all-comers position, even as some rued the Court’s unwillingness to address the written nondiscrimination code.  This reminds me of Mark Twain’s comment, when talking to a friend who claimed that he was “neutral” on a controversial issue.  Responded Twain, “Then whom are you neutral against?”  The Supreme Court supported neutrality against the Christian Legal Society, a victory for “one size fits all.” In contrast, some opponents have framed the Hastings decision as the approval of a secular institution that was stomping on people of faith.  Wait a minute!  People of faith didn’t form a united front on this case.  For example, while the U.S. Conference of Catholic Bishops and Orthodox Jewish organizations supported the CLS, the Association of Jesuit Colleges and Universities and Reform Jewish organizations supported Hastings.  Absent some tortuous logic that manages to exclude Jesuits and Reform Jews from people of faith, that framing doesn’t hunt. So the Hastings-CLS case involves competing diversity imperatives: anti-discrimination vs. respect for cultural differences; full inclusion vs. support for affinity groups.  Platitudes and moral pieties won’t help us engage the complex ethical challenges that arise when diversity principles clash and force us –- as institutions and as individuals –- to determine organizational and personal Limits. Challenges for Student Affairs

Here are a few considerations for Student Affairs professionals.

The Court’s decision was narrow, particularly its refusal to rule on Hastings’ more-elaborated written nondiscrimination policy, including the Limits it placed on individual organizations.  This means that we’ll have to await future nondiscrimination code cases, some of which are already coming down the pike. An “all-comers” policy might “work” in a law school, but it’s trickier at the undergraduate level where, for example, fraternities and sororities select their members.  What about a women’s choral society or a Muslim student association or a sports club for those with disabilities? Some campuses might wish to form work groups involving Student Affairs professionals, diversity experts, and legal counsel to conduct an ongoing review of current practices and written policies, while also discussing their future implications and possible unintended consequences, including the Limits Dilemma. When discussing complex diversity issues, we all need to be wary of holier-than-thou posturing.  That also means refraining from demonizing people with whom we disagree and positions which we oppose.

Student Affairs professionals are going to need to strengthen their analytical “multicultural muscles” –- their ability to think through and make tough decisions in situations where laudable diversity principles collide.  Traditional awareness training, multicultural abstractions, and rhetoric about privilege and social justice won’t suffice.  We need a new generation of applied diversity training that helps professionals address the Limits Dilemma by testing conflicting diversity principles through complex real-world issues. So let’s thank Hastings, the Christian Legal Society, and the Supreme Court for, however unintentionally, bringing us to this important multicultural crossroads.  Let’s also hope it leads to more nuanced, less strident, diversity discussions. I’d like to hear your thoughts about this case and about Limits.